United States v. Ernst ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
4-23-2007
USA v. Ernst
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5260
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 05-5260
_______________
UNITED STATES OF AMERICA,
v.
MICHAEL ERNST,
Appellant.
_______________
On Appeal From the United States District Court
for the Eastern District of Pennsylvania
(No. 01-cr-00093)
District Judge: Honorable Stewart Dalzell
Submitted Under Third Circuit LAR 34.1(a)
January 25, 2007
Before: SCIRICA, Chief Judge, FUENTES and CHAGARES, Circuit Judges.
(Filed April 23, 2007)
__________________
OPINION OF THE COURT
__________________
CHAGARES, Circuit Judge.
Appellant Michael Ernst (“Ernst”) received a thirteen-month sentence upon
revocation of his probation. He filed a timely pro se Notice of Appeal. His appointed
counsel filed a petition to withdraw pursuant to Anders v. State of California, 386 U.S.
738 (1967). For the reasons expressed below, we will grant counsel’s petition to
withdraw and we will affirm the sentence.
I.
As we write solely for the benefit of the parties, a lengthy recitation of the facts
and procedural background is unnecessary.
On February 22, 2001, the grand jury returned an indictment charging Ernst and
eight co-defendants with conspiracy to remove vehicle identification numbers and to
traffic in vehicles with altered identification numbers with intent to sell, in violation of 18
U.S.C. § 371; removal and alteration of vehicle identification, in violation of 18 U.S.C. §
511; possession of vehicles with altered identification numbers with intent to sell, in
violation of 18 U.S.C. § 2321; and aiding and abetting, in violation of 18 U.S.C. § 2. On
October 2, 2001, Ernst pled guilty to all charges against him. On January 8, 2002, the
District Court sentenced Ernst to five years of probation.
On September 1, 2005, Ernst’s probation officer filed a Violation of Probation
Report (the “Probation Report”) with the District Court. At the time, Ernst was serving a
three-month sentence in the Berks County Prison for various state crimes related to a hit-
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and-run accident in which he had been involved. A warrant issued and Ernst was brought
before the District Court for a revocation hearing on November 23, 2005.
The day prior to the hearing, counsel met with Ernst to discuss his violations. An
issue arose as to the amount of time Ernst should be credited for his incarceration on the
foregoing state charges.1 At the hearing, Counsel sought a continuance to conduct further
research into the matter, but the District Court declined to continue the revocation
hearing. Counsel was granted a ten-minute recess to confer with Ernst’s probation
officers present at the hearing.
The Probation Report detailed conduct constituting various violations of Ernst’s
probation. Specifically, it reported that Ernst traveled to Atlantic City on several
occasions to gamble and to Baltimore, Maryland for sightseeing without permission – a
Grade C violation of his probation. Ernst failed to submit truthful and accurate monthly
reports, neglecting to mention several purchases of cars and a motorcycle. In a
conversation with his probation officer, Ernst admitted that he was hiding his assets out of
concern that the assets would be subject to forfeiture to pay restitution. Failure to submit
truthful monthly reports is a Grade C violation. After an incident in which Ernst was
alleged to have slapped his wife across the face, Ernst’s wife requested and received a
1
Apparently there was some question regarding when Ernst came into federal
custody. The District Court acknowledged that Ernst may be due some credit for time
served and requested that Ernst’s counsel follow up with the Court if the Bureau of
Prisons’ calculus of time was inaccurate.
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Protection From Abuse Order (“PFA Order”). Ernst violated the PFA Order on four
separate occasions by attempting, multiple times, to talk to his wife over the telephone.
Because the actual conduct (the slap) leading to the PFA Order constituted a crime of
violence under Pennsylvania law, this conduct became a Grade A violation of Ernst’s
probation. Finally, Ernst attempted to defraud his insurance company by claiming his
vehicle was stolen when in fact it was not. This conduct constituted a Grade B violation
of his probation.
Ernst was given the opportunity to testify on his behalf regarding the factual bases
for the violations articulated in the Probation Report. On the subject of Ernst’s violations
of the PFA Order, Ernst explained that the numerous calls he made to his wife were in an
attempt to work things out. While he admitted violating the PFA Order, Ernst never
raised any issues with regard to the underlying factual basis for the entry of the PFA
Order in the first instance. He now claims, though, that he never struck his wife and that
she fabricated the whole story. (Letter from Ernst to U.S. Court of Appeals for the Third
Circuit (June 21, 2006)).
At the conclusion of the hearing, the District Court imposed a thirteen-month term
of incarceration and a three-year term of supervised release. Ernst timely appealed.
Ernst’s counsel petitions the Court to withdraw as attorney of record on the grounds that
the appeal is frivolous; Ernst has filed a pro se brief.
II.
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A lawyer may petition the Court pursuant to Anders v. California, 386 U.S. 738,
744 (1967), if he seeks to withdraw from a case because the indigent criminal defendant
he represents wishes to pursue frivolous arguments on appeal. Anders requires that
counsel engage in a “conscientious examination” of the record and submit “a brief
referring to anything in the record that might arguably support the appeal.” Anders, 386
U.S. at 744; Third Circuit L.A.R. 109.2(a). When counsel submits an Anders brief, this
Court engages in a two-fold inquiry. First, we determine “whether counsel has
adequately fulfilled the rule’s requirements.” United States v. Youla, 241 F.3d 296, 300
(3d Cir. 2001) (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000)). To this
end, counsel fulfills his duties if the Anders brief satisfies “the court that counsel has
thoroughly examined the record in search of appealable issues, and . . . [has] explain[ed]
why the issues are frivolous.” Id. If counsel’s brief meets with approval, we turn to an
independent analysis of the record to determine whether there are any non-frivolous
issues. Id. However, our review is confined to “those portions of the record identified by
an adequate Anders brief, so that our examination of the record is informed by those
issues raised in Appellant’s pro se brief.” Id. at 301 (discussing United States v. Wagner,
103 F.3d 551 (7th Cir. 1996)).
Here, counsel conducted a thorough examination of the proceedings, and has
culled from the record three potentially appealable issues: (1) whether counsel rendered
ineffective assistance based upon the amount of time spent reviewing with Ernst the
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violations of probation and grading prior to the probation hearing; (2) whether Ernst’s
conduct serving as the basis for the PFA Order constituted a Grade A violation of
probation pursuant to U.S.S.G. § 7B1.1; and (3) whether the sentence imposed was
reasonable. However, counsel explains that each issue is frivolous and we agree, having
conducted our own independent review. We address each issue in turn.
A.
Ernst claims that on the day before the probation hearing he met with counsel for
only five to ten minutes. According to Ernst, counsel was unaware of what the violations
entailed and did not review the Probation Report with Ernst prior to the hearing. Ernst
did not see counsel again until the next day when he was brought to the revocation
hearing. During the ten-minute court recess afforded to counsel, Ernst claims he had his
first opportunity to review the Probation Report. Consequently, Ernst now argues that he
had inadequate time to review the allegations contained therein and to consult with
counsel. However, he raised no objections to the District Court regarding the amount of
time spent reviewing the Probation Report or consulting with counsel. When asked by
the Court whether he reviewed the Probation Report Ernst replied, “I just did now
actually. This is the first time I seen it, today.” The Court then asked, “There’s nothing
you disagree with?” Ernst answered, “No. The only thing I have is like there’s a couple
little things that are written up. But, like I said, when you look, when I look at the main
problem, [it’s] my Grade A violation.” (A50-A51.) Based on this colloquy and the
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amount of time spent discussing the Grade A violation during the hearing, it does not
appear that Ernst had inadequate time to review the Probation Report.
Even if he did have inadequate time to prepare with counsel, in this situation,
Ernst’s claim of ineffective assistance of counsel is premature on direct appeal. Rather,
the issue of ineffectiveness of counsel must be raised in a collateral proceeding. Massaro
v. United States, 538 U.S. 500, 505 (2003); United States v. Thornton, 327 F.3d 268, 271-
72 (3d Cir. 2003) (“It has long been the practice of this court to defer the issue of
ineffectiveness of trial counsel to a collateral attack.”). Accordingly, although the
ineffectiveness of counsel’s assistance, however unlikely, may be an open question, it
cannot form the basis for a non-frivolous claim on direct appeal here.
B.
Ernst does not dispute the legal determination that the offense of simple assault is
a crime of violence under Pennsylvania law, an issue settled by United States v. Dorsey,
174 F.3d 331, 332-33 (3d Cir. 1999). Nor does Ernst dispute that, in finding a violation
of probation, the District Court considered only the actual conduct charged and not
whether Ernst had been convicted in a criminal proceeding. U.S.S.G. § 7B1.1 app. note 1
(“Under 18 U.S.C. §§ 3563(a)(1) and 3583(d), a mandatory condition of probation and
supervised release is that the defendant not commit another federal, state, or local crime.
A violation of this condition may be charged whether or not the defendant has been the
subject of a separate federal, state, or local prosecution for such conduct. The grade of
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violation does not depend upon the conduct that is the subject of criminal charges or of
which the defendant is convicted in a criminal proceeding. Rather, the grade of the
violation is to be based on the defendant's actual conduct.”). Instead, Ernst now disputes
the actual conduct; that is, he contests that he slapped his wife on August 28, 2003. At
the hearing, Ernst suggested that his wife played a “PFA game” in order to “get her time
away, so she can go to her mom’s house and don’t [sic] have to be bothered.” (A49.)
Ernst admitted that he violated the PFA on four occasions, but notably, never once did he
dispute the assault allegation throughout the extensive colloquy.
A defendant’s failure to object to the factual allegations in a presentence report is
tantamount to an admission. United States v. Siegel, 477 F.3d 87, 93 (3d Cir. 2007). We
perceive no appreciable difference in this context between a presentence report and a
violation of probation report. By failing to object to the factual underpinnings of the
Grade A violation, Ernst is deemed to have admitted them. Furthermore, it is well-settled
that factual disputes not raised before the District Court are waived upon appeal. See
Keenan v. City of Philadelphia, 983 F.2d 459, 471 (3d Cir. 1992) (an issue is waived
where the argument is not presented with “sufficient specificity to alert the district
court”); see also Bagot v. Ashcroft, 398 F.3d 252, 256 (3d Cir. 2005) (noting that “[i]t is
well established that failure to raise an issue in the district court constitutes a waiver of
the argument in this Court”) (internal citation and quotations omitted). To the extent that
Ernst seeks to dispute the factual basis for his Grade A violation on appeal, the claim is
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frivolous because he failed to object at the revocation hearing. To the extent that Ernst
claims his attorney was ineffective in not sufficiently reviewing the report with him,
therefore enabling him to object, the claim is not ripe for appellate review, as discussed
above.
C.
If a defendant violates a condition of probation during the probation period, the
District Court “may, after a hearing pursuant to Rule 32.1 of the Federal Rules of
Criminal Procedure, and after considering the factors set forth in section 3553(a)2 to the
extent that they are applicable . . . (2) revoke the sentence of probation and resentence the
defendant under subchapter A.” 18 U.S.C. § 3565(a)(2). We made clear in United States
v. Blackston, 940 F.2d 877 (3d Cir. 1991), that, within the realm of revocation of
probation or supervised release, the District Court need only “consider” relevant policy
statements and the § 3553(a) factors listed in § 3583(e). Id. at 893. “In fact, there is no
requirement that the district court make specific findings with respect to each of the
section 3553(a) factors that it considered. At the time of sentencing, the district court
simply must state on the record its general reasons under section 3553(a) for rejecting the
Chapter 7 policy statements and for imposing a more stringent sentence.” Id.; accord
2
Those factors include “(1) the nature and circumstances of the offense; (2) the
history and characteristics of the defendant; (3) the need to afford adequate deterrence to
criminal conduct; (4) the need to protect the public from further crimes of the defendant;
and (5) the need to provide the defendant with appropriate treatment.” United States v.
Blackston, 940 F.2d 877, 893 (3d Cir. 1991).
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United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006) (recognizing that the District
Court does not have to “discuss and make findings as to each of the § 3553(a) factors if
the record makes clear the court took the factors into account in sentencing”).
The Sentencing Guidelines recommend that a defendant with a criminal history
category I should receive a sentence of twelve to eighteen months for a Grade A
violation. U.S.S.G. § 7B1.4(a)(1). Here, Ernst was sentenced at the low-end of the
guidelines range to thirteen months imprisonment. The District Court recognized that
Ernst accepted responsibility and, because of that, sentenced Ernst below the
Government’s recommendation of fifteen months. From the ensuing colloquy, it is clear
that the District Court considered the many offenses Ernst committed, which
demonstrated an overt lack of respect for the law, the need to protect the public from
further crimes, and the need to provide the defendant with appropriate punishment. We
conclude that the sentenced imposed was plainly reasonable. Therefore, any claim based
on the unreasonableness of the sentence would be frivolous.
III.
Where we conclude, as we do here, that the appeal is without merit, our local rules
require that we grant counsel’s Anders motion and dispose of the appeal without
appointing new counsel. Third Circuit L.A.R. 109.2(a). Accordingly, counsel’s motion
will be granted and Ernst’s sentence will be affirmed.
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